JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

19 June 2015

Case T‑88/13 P

Z

v

Court of Justice of the European Union

(Appeal — Civil service — Officials — Impartiality on the part of the Civil Service Tribunal — Application for the recusal of a judge — Reassignment — Interests of the service — Rule that the grade must correspond with the post — Article 7(1) of the Staff Regulations — Disciplinary proceedings — Rights of defence)

Appeal:      against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 5 December 2012 in Z v Court of Justice (F‑88/09 and F‑48/10, ECR-SC, EU:F:2012:171), and seeking to have that judgment set aside.

Held:      The judgment of the European Union Civil Service Tribunal (Third Chamber) in Z v Court of Justice (F‑88/09 and F‑48/10, ECR-SC, EU:F:2012:171) is set aside in so far as it rejected as ineffective the plea in law, raised in Case F‑48/10, alleging lack of competence on the part of the Complaints Committee and illegality of Article 4 of the decision of the Court of Justice of the European Union of 4 May 2004 concerning the exercise of the powers conferred by the Staff Regulations of Officials of the European Union on the appointing authority and by the Conditions of Employment of Other Servants of the European Union on the authority empowered to conclude contracts of employment. The remainder of the appeal is dismissed. The action in Case F‑48/10 is dismissed in so far as it was based on the plea in law alleging lack of competence on the part of the Complaints Committee and illegality of Article 4 of the decision of the Court of Justice of 4 May 2004 concerning the exercise of the powers conferred by the Staff Regulations of Officials of the European Union on the appointing authority and by the Conditions of Employment of Other Servants of the European Union on the authority empowered to conclude contracts of employment. As regards the costs incurred in the present appeal proceedings, Z is to bear three quarters of her own costs and is ordered to pay three quarters of the costs incurred by the Court of Justice, and the Court of Justice is to bear one quarter of its own costs and is ordered to pay one quarter of the costs incurred by Z.

Summary

1.      Actions brought by officials — Act adversely affecting an official — Decision to reject a complaint — Straightforward rejection — Confirmatory measure — Inadmissibility

(Staff Regulations, Art. 91(1))

2.      Actions brought by officials — Prior administrative complaint — Complaint against a measure that is the subject of court proceedings — No effect on the administration’s duty to consider the complaint

(Staff Regulations, Arts 90 and 91)

3.      Court of Justice of the European Union — Obligation for the judges of the European Union judicature to be independent — Scope — Performance of duties relating to the institution’s internal administration — Lawfulness

(Statute of the Court of Justice, Art. 4)

1.      See the text of the decision.

(see para. 141)

See:

Order of 16 June 1988 in Progoulis v Commission, 371/87, ECR, EU:C:1988:317, para. 17

Judgments of 2 March 2004 in Di Marzio v Commission, T‑14/03, ECR-SC, EU:T:2004:59, para. 54; 21 September 2011 in Adjemian and Others v Commission, T‑325/09 P, ECR, EU:T:2011:506, para. 32, and 21 May 2014 in Mocová v Commission, T‑347/12 P, ECR (Extracts), EU:T:2014:268, para. 34

2.      Regarding the complaint procedure established by Article 90 of the Staff Regulations, the complainant must be able to request a review by the European Union Courts of the legality of the decision rejecting the complaint and not only the legality of the original act that was the subject of the complaint.

The complainant’s interest in the proper conduct of the complaint procedure and, therefore, in the annulment of the decision relating to the rejection of his complaint in the event of irregularity, must be assessed independently and not in relation to any action brought against the initial act, which is the subject of the complaint. Otherwise, the person concerned could never rely on irregularities in the complaint procedure, even though they deprived him of the benefit of a proper pre-litigation review of the administration’s decision, whenever an appeal is brought against the initial act against which the complaint was made. He would thus be deprived of the benefit of a procedure which seeks to permit and encourage an amicable settlement to the dispute which has arisen between the official and the administration and to require the authority to which the official reports to reconsider its decision, in compliance with the rules, in the light of any objections which that official may make.

(see paras 144-146)

See:

Judgment in Mocová v Commission, EU:T:2014:268, para. 38

3.      The first paragraph of Article 4 of the Statute of the Court of Justice, according to which the judges may not hold any political or administrative office, seeks to ensure the independence of the judges, both during and after the exercise of their functions, with regard, in particular, to Member States or other EU institutions. The other paragraphs of Article 4 of the Statute of the Court of Justice also reflect that aim of preserving the judges’ independence.

However, it cannot be inferred from the first paragraph of Article 4 of the Statute of the Court of Justice that it is impossible to exercise functions relating to the internal administration of the institution. The exercise by the judges of internal administrative functions within the institution does not undermine their independence and makes it possible to ensure the administrative autonomy of the institution.

(see para. 167)